Modelay v Zeeman and Others

• Jurisdiction: South Africa
• Citation: 1968 (2) SA 792 (D)

Modelay v Zeeman and Others
1968 (2) SA 792 (D)

1968 (2) SA p792

Citation	1968 (2) SA 792 (D)
Court	Durban and Coast Local Division
Judge	Miller J
Heard	March 1, 1968
Judgment	April 11, 1968

Flynote : Sleutelwoorde

Magistrate's court — Civil proceedings — Execution — Sale in execution — When unimpeachable — Act 32 of 1944, sec. 70.

Headnote : Kopnota

As against one who bought the property in good faith there is, in terms H of section 70 of Act 32 of 1944, no right of impeachment after delivery or transfer in the case of a sale in execution by the messenger of the magistrate's court.

Case Information

Exception to a declaration. The nature of the pleadings appears from the reasons for judgment.

A. J. Milne, S.C. (with him D. B. Friedman), for the excipient (third defendant).

P. M. Meskin, for the respondent (plaintiff).

1968 (2) SA p793

Cur adv vult.

Postea (April 11th).

Judgment

A Miller, J.:

The sole question in this case, which is before the Court by way of exceptions taken by the third defendant to plaintiff's declaration, is what the meaning is of sec. 70 of the Magistrates' Courts Act, 32 of 1944.

Plaintiff was the registered owner of immovable property situate in Durban. The property was encumbered by a mortgage bond in favour of one B Bessesser, who duly ceded his rights under the bond to the first defendant. During January, 1965, the first defendant obtained judgment against the plaintiff for payment of R1,200, being the amount due and owing under the bond, and the property was declared to be executable. The messenger of the court (the second defendant) duly attached the C encumbered property and notice of the intended sale in execution on 4th June, 1965, was published in a newspaper and in the Government Gazette on 14th May. The sale in execution took place on the appointed day, when the third defendant (the excipient) purchased the property for R1,250.

Plaintiff alleges in his declaration that the sale in execution was 'unlawful and invalid' because the notice of such sale did not comply D with Rule 40 (6) (b) of the Rules of the Magistrates' Courts in that it 'did not contain the material conditions of the sale in execution'. Transfer of ownership of the property was registered in the name of the third defendant only on 5th July, 1967. Plaintiff alleges that prior to registration of transfer, the third defendant knew that it was being contended by plaintiff that the sale in execution was unlawful and E invalid on the grounds already indicated and that by reason thereof - 'Third defendant, prior to and at the time of such registration, was a purchaser with notice of a defect within the meaning of sec. 70 of Act 32 of 1944, as amended,'

and that

'Third defendant was also, prior to and at the time of such F registration, a purchaser not in good faith within the meaning of sec. 70 aforesaid.'

In reply to a request for further particulars, plaintiff intimated that third defendant became aware of the alleged invalidity of the sale only after the date of the sale in execution. The relief claimed by plaintiff pursuant to all these allegations is that the sale in execution be G declared null and void and that third defendant be directed to do all things necessary to effect registration of ownership of the property in plaintiff's name.

The import of the exceptions taken by third defendant to the declaration is that it discloses no cause of action, in that it nowhere alleges that H at the time of the sale the purchaser had knowledge of any defect (on the contrary, plaintiff alleges that the purchaser only acquired such knowledge after the date of sale but before transfer) whereas in terms of sec. 70 of the Act,

'the relevant time for determining whether or...